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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Good morning, Aughie.
J. Aughenbaugh: Good morning, Nia, How are you?
N. Rodgers: I am a little sad.
J. Aughenbaugh: So am I.
N. Rodgers: We have two episodes today. In our other episode, we recorded earlier and we had a little bit of fun with it. Mr. Santos no longer being a member of Congress. We're turning now to my more real feelings about something in the world. That is, you are going to pay tribute to the lovely and wonderful Sandra Day O'Connor.
J. Aughenbaugh: At the point that we're recording this episode, listeners, Sandra Day O'Connor died within the week, this past week.
N. Rodgers: December 1st.
J. Aughenbaugh: Yeah, December 1st.
N. Rodgers: She died December 1st, 2023, so much about Sandra Day O'Connor.
J. Aughenbaugh: For Nia and I, her appointment to the United States Supreme Court as the first female justice was monumental.
N. Rodgers: Well, she said to girls like me, you can be on the highest court in the land. The dream of being a lawyer is not limited for you in any way, and that was magical in its own.
J. Aughenbaugh: In her lifetime, the change of what opportunities were available to women in the legal profession was stunning. Because as I will jumping ahead in regards to her biography, but she graduated from one of the top law schools in the United States, Stanford University Law School. Forever Ranked in the top 10, top 15, top 20. She graduated third. When she graduated, she could not get a full-time lawyer position at any law firm in the United States. They wanted to hire her as a legal secretary.
N. Rodgers: Let's start with the fact that when she died she was 93 years old.
J. Aughenbaugh: Yes. She died from complications of dementia related to the fact that she announced in 2018 that she had been diagnosed with Alzheimer's.
N. Rodgers: She's born in 1930?
J. Aughenbaugh: Yes.
N. Rodgers: She was born in Texas.
J. Aughenbaugh: She was born in a hospital in El Paso, Texas because the part of Arizona where her family had a rather large farm did not have a hospital.
N. Rodgers: Her mom went to El Paso to have a baby, which actually speaks already to a slight difference because a lot of people would have been born at home in 1930. But she was born in a hospital. Already a little unusual even on the day of her birth.
J. Aughenbaugh: She grew up, as I just mentioned, in a farming family. It was a ranch. Cows, horses, etc. By all accounts, she was expected to farm just like the ranch hands and her father who she just absolutely adored. Her relationship with her mom, as she wrote in her biography, growing up on the name of the farm was, I think, Lazy B farm. Her relationship with her mom was well, I mean, hey, it's like many relationships that daughters have with their mothers. Very contentious. She was sent to an all-girls school in El Paso, Texas, graduated high school when she was 16, Nia.
N. Rodgers: I mean, we are talking about one of the most brilliant people, not women. One of the most brilliant people. Who's come down the pipe. If listeners are wondering, Aughie and I are big fans, so you're not going to hear us say a lot of negative things about. We might have some disagreements with some of her opinions later and we'll talk about that as we get on later in the episode. But as far as our admiration for the woman who was Sandra Day, before she was O'Connor by the way. I will tell you that growing up, she was a feminist icon to my generation because she was a smart woman. In fact, a lot of us and called her Sandra Day. We didn't call her Sandra Day O'Connor because that's his name. She was a brilliant person in her own right doing all of these things and being able to manage her life in this great way. She was just a great example.
J. Aughenbaugh: She was a great example. The fact that she kept her main name.
N. Rodgers: Was big.
J. Aughenbaugh: As part of her married name was huge because at the time.
N. Rodgers: People didn't do that.
J. Aughenbaugh: If women were to succeed, in business, politics, the law, etc., they usually took their husband's name. That was customary. It was somewhat unusual to have Sandra Day keep her main name as part of her married name.
N. Rodgers: The second woman on the court, Ruth Bader Ginsburg, did the same thing. Part of it is that they had already developed reputations.
J. Aughenbaugh: A professional identity.
N. Rodgers: With their single names.
J. Aughenbaugh: Yes. After she graduated from high school early, she then goes to Stanford and studied economics, and she graduated with honors. Again, a woman in a field at that time that was dominated by men. Then she goes to law school, finishes third in her class.
N. Rodgers: Third at Stanford.
J. Aughenbaugh: Third at Stanford.
N. Rodgers: The vast majority of the institution.
J. Aughenbaugh: You're not an intellectual lightweight if you're graduating third.
N. Rodgers: Who graduated first?
J. Aughenbaugh: Her former colleague and at that time a person who she dated a few times, Chief Justice William Rehnquist.
N. Rodgers: Who was of course not Chief Justice when he graduated from law school. That'll tell you who the crowd is, she's running.
J. Aughenbaugh: Again, you're not talking about an intellectual lightweight. Rehnquist, you can be criticized for his jurisprudence, blah, blah, blah.
N. Rodgers: But not for his intellect.
J. Aughenbaugh: Not for his intellect.
N. Rodgers: Notice that Aughie said they dated.
J. Aughenbaugh: They did date.
N. Rodgers: Chief Justice Rehnquist when he was a young man in law school, I believe he asked for hand in marriage, at young Sandra Day, who said, no.
J. Aughenbaugh: Thanks, but no.
N. Rodgers: I'm just saying she turned down a man who would later be a Chief Justice of the Supreme Court. She's her own icon.
J. Aughenbaugh: You got to admire the confidence of a woman.
N. Rodgers: I can do better.
J. Aughenbaugh: I could do better than you.
N. Rodgers: Actually, she probably said I'm going to find somebody slightly more suited to me or whatever. She wasn't trying to slam Rehnquist. Let's be honest, she wasn't trying to slam Rehnquist.
J. Aughenbaugh: But she actually met her husband at Stanford. John O'Connor was one class behind her and Rehnquist. She met O'Connor because they both worked on Stanford's Law Review. Again, that's a very competitive position in law school.
N. Rodgers: That's who she's running with. People with that level, and she's holding her own.
J. Aughenbaugh: Yes. After law school, she marries O'Connor and they moved to Europe. Because he had a military commitment. He served in the JAG Corps. She actually served as a lawyer in the Army Quartermaster Office. Basically the supply and logistics arm of the Army. But when they returned to the United States, she couldn't find a full-time legal position. They only offered her.
N. Rodgers: As you said, they offered her legal secretary job.
J. Aughenbaugh: Legal secretary jobs.
N. Rodgers: Because she was a woman.
J. Aughenbaugh: Yes.
N. Rodgers: They were unwilling to put her in a court, which is silly because can you imagine the firm? If they had hired her as a lawyer, what they would have accomplished.
J. Aughenbaugh: By the way, Ruth Bader Ginsburg had a similar experience. Ruth Bader Ginsburg graduated from an Ivy and she couldn't find full-time work as an attorney.
N. Rodgers: We're talking the 1960s here, and the inability to get a job as a lawyer. I just want to say I would love to go back in time and say to the people, the bosses who turned her down for those jobs, she's going to be on the Supreme Court in a few years. I wonder how many of them went, man, we could have had Sandra Day O'Connor as our.
J. Aughenbaugh: Yes.
N. Rodgers: As one of our lawyers in our firm.
J. Aughenbaugh: Yeah, one of our partners. When they returned to the States, they decided to live in Phoenix, Arizona. They had three boys. O'Connor got a job working in a big law firm in Phoenix.
N. Rodgers: John O'Connor.
J. Aughenbaugh: John O'Connor did. Yes. After she had her three boys while they were in school, decided to open her own law firm in the suburb outside of Phoenix, where they lived. She worked part-time, raised three boys, and then she began to volunteer in various civic and political organizations in Phoenix. At that time, Phoenix was overwhelmingly Republican. Today it is.
N. Rodgers: Very different.
J. Aughenbaugh: It's more bluish, maybe purplish.
N. Rodgers: Purplish.
J. Aughenbaugh: Purplish. Blue, red. But back then, it was very conservative. Arizona as a state was very conservative. But she got involved with the Republican Party at the precinct level. In terms of local governments, precincts are even a smaller unit. She got involved in Republican Party politics, if you will, smallest most grassroots level. I think there's a lesson to be learned for many young people who may be listening to this episode. If you're thinking about getting involved in politics, don't aspire immediately to the national level.
N. Rodgers: But don't run for president.
J. Aughenbaugh: Get involved locally, and develop your skills, develop your network.
N. Rodgers: Your relationships. Understand how what will fly and what will not because you will learn at the district level far more about politics, actual working politics, than you will at the national level. Because at the district level, you have to compromise.
J. Aughenbaugh: Yes.
N. Rodgers: You have to compromise. You have to find ways for people to work together. You don't get to just be all fussy in front of the news and call it good.
J. Aughenbaugh: I'm glad you mentioned that because at the national level, the focus is so much on how elected official looks in terms of the cameras and posts on social media platforms. But at the local level, you got to go door to door.
N. Rodgers: Right.
J. Aughenbaugh: You got to see your voters face to face.
N. Rodgers: They know you. They see you in the grocery store.
J. Aughenbaugh: They see you in church.
N. Rodgers: They see you in the school pick-up line.
J. Aughenbaugh: Yes.
N. Rodgers: All of that stuff. They're going to see you when you go out of the house with sketchy clothes on, your hair sticking up, all kinds of ways. You hadn't brushed your teeth. You are very real to them and they are very real to you, that's real relationships.
J. Aughenbaugh: Yes.
N. Rodgers: She was building all of that.
J. Aughenbaugh: She became so successful and so well known at the local level that in 1965, she first returned to full-time work as an assistant state attorney general. Again, for our listeners who are starting out and thinking about a legal career, and I'm going to be a judge or I'm going to go work for a big firm.
N. Rodgers: No. You're going to be an assistant state attorney or assistant defense attorney and see how the court system actually works. But that opened the door to, wasn't there a vacancy in the.
J. Aughenbaugh: State Senate.
N. Rodgers: State Senate in Arizona?
J. Aughenbaugh: Yeah. In 1969, Governor Jack Williams, a Republican, appointed her to fill a vacancy in the State Senate.
N. Rodgers: He did that because she had put in the groundwork.
J. Aughenbaugh: Work, yes.
N. Rodgers: She was known. People were like, you know who you should appoint. You should appoint Sandra Day O'Connor. She's hardworker. She's smart. You should appoint her. He may or may not have known her personally, but he found out reputationally because she had built a local reputation.
J. Aughenbaugh: Reputation. She then decided to run for reelection in 1970.
J. Aughenbaugh: Then in 1972, she won reelection and she was picked by her colleagues to become the first Senate majority leader in the history of Arizona, the first female majority leader in Arizona.
N. Rodgers: Then she switched gears a little. She got out of.
J. Aughenbaugh: In '74 she decided to run for a seat on the Maricopa County Superior Court. Arizona, like a number of states in the United States, actually have judicial elections. She ran for that, then two years later she ran for a seat on the Arizona Appellate Court.
N. Rodgers: Sandra Day O'Connor, to just quickly sum up, served as an Assistant State Attorney. She served in the the State Senate. Then she served on the state at various court levels.
J. Aughenbaugh: All three branches of Arizona government, Sandra Day O'Connor served in. All three branches.
N. Rodgers: She has this huge variety of experience. Now, from '76-'80 or so, she's on the Arizona Appellate Court.
J. Aughenbaugh: That's right.
N. Rodgers: President Reagan in his infinite wisdom in his election campaigns said, I will appoint a woman.
J. Aughenbaugh: The first female justice.
N. Rodgers: To the Supreme Court. Not unlike President Biden.
J. Aughenbaugh: Saying I'm going to appoint the first female African American justice in the history of this.
N. Rodgers: This idea that Biden didn't do something that other presidents have done. President Reagan did it before him.
J. Aughenbaugh: Yes.
N. Rodgers: Presidents do that kind of stuff all the time. We need more diversity and X thing, and I will bring it by appointing.
J. Aughenbaugh: Lyndon Johnson, when he ran for election in '64 mentioned in a number of campaign stops that he was going to appoint more African Americans to the federal judiciary and he would be open to the possibility of appointing an African American to the Supreme Court and he did. This is the kind of thing that you say in campaigns, but as presidents, it's part of your legacy. Let's never forget, presidents have one eye on the present, but they also have on the legacy.
N. Rodgers: How are they going to remember me?
J. Aughenbaugh: It just so happened Reagan wins election in '80, but within a few short months of him being president, a vacancy arises on the court. Potter Stewart, who by all accounts was in good health decided that after about a quarter of a century serving on the Supreme Court, he was going to retire.
N. Rodgers: There's something to be said for that.
J. Aughenbaugh: Yes.
N. Rodgers: Because David Souter did the same thing. While I'm in good health and still have my mind, I'm peacing out of this place. I'm going to go eat apples in Maine or wherever.
J. Aughenbaugh: New Hampshire.
N. Rodgers: It would be nice if more people. Right. Souter's case, New Hampshire. But I'm going to go do a thing and leave me alone. I'm just going to go do a thing. He gets even luckier, people hand him a short list.
J. Aughenbaugh: Yes.
N. Rodgers: Because that's how it works with presidents. They hand you a short list of a bunch of a few people after they have vetted the snot out of those people. Generally speaking, not always. But generally, they have vetted those people and they give the president a list of people and they say, these are pretty safe candidates, we think they're going to do okay.
J. Aughenbaugh: In this particular case, Nia, you saw something happen that you don't see today. Two serving Supreme Court justices actually vouched for Sandra Day O'Connor.
N. Rodgers: Rehnquist.
J. Aughenbaugh: Rehnquist and the Chief Justice, Warren Burger, both went ahead. Burger had attended a number of conferences where O'Connor was at and actually went overseas to a conference in Great Britain. That was exploring an anniversary of British common law and she was along on the trip and Warren Burger was impressed with Sandra Day O'Connor.
N. Rodgers: Because he was not a stupid man and she was fabulous.
J. Aughenbaugh: She was fabulous.
N. Rodgers: Actually, I would have been so odd. I don't know if I would have spoken.
J. Aughenbaugh: I only met Justice O'Connor once.
N. Rodgers: You met her?
J. Aughenbaugh: Yeah, when I was doing research for my dissertation on Justice Byron White. Byron White, when he left the Supreme Court, he placed a condition on access to his Supreme Court papers. You had to get permission from his clerk to look at them and permission would only be granted for serious and worthwhile scholarly contributions. I figured since I'm doing my dissertation on him, this was serious and a worthwhile scholarly contribution. I went up to the Supreme Court building where Byron White, who was retired, had an office, met with his clerk. Now, ultimately, my request was rejected because I was just a mere doctoral student, but Byron White's clerk took me around the Supreme Court chambers and in that tour, I met three justices; Chief Justice Rehnquist, Justice Clarence Thomas, and Sandra Day O'Connor. I got to tell you, Nia, her handshake left my hand hurting for like 15, 20 minutes afterwards.
N. Rodgers: She was a ranch hand who never stopped being a ranch hand.
J. Aughenbaugh: Down to earth. Invited me into her office, her chambers. It was decorated much like you would expect somebody from the Southwest. It had Native American tapestries, etc., but extremely down to earth. She was so pleased that I was doing my dissertation on Byron White because she was just like, I so enjoyed working with him. His approach to our work is much like mine. We got a job to do, so let's get it done. Yes. My hand still hurts. That's what I was thinking.
N. Rodgers: Please don't hit me. She'd probably knock me unconscious. Her vote in the Senate is 99 to zero.
J. Aughenbaugh: Yes, she was confirmed.
N. Rodgers: There is no opposition?
J. Aughenbaugh: No opposition to her whatsoever.
N. Rodgers: Knows a good thing when they see one.
J. Aughenbaugh: Well, they did back then. Today on the other hand.
N. Rodgers: Today she would get confirmed, but she probably wouldn't get confirmed with a unanimous. Those days are more or less gone, I think, because a lot of what's happening in the Senate now with confirmation is political posturing. But now, can we talk about her as a justice, her jurisprudence?
J. Aughenbaugh: When she was nominated and confirmed, and Nia and I are going to take our listeners back to a history lesson. By 1980 standards, Sandra Day O'Connor was clearly a conservative on the Burger Court. The court led by Chief Justice Warren Burger. Because only the Chief Rehnquist and occasionally Lewis Powell were more conservative than Sandra Day O'Connor with their votes and opinions.
N. Rodgers: Just the 1980s court was.
J. Aughenbaugh: Was a moderate court. You had holdovers from the Warren Court, so you had liberals like Brennan, Thurgood, Marshall. But you had a bunch of justices appointed by Nixon who were not hardcore conservatives.
N. Rodgers: They were moderate.
J. Aughenbaugh: It was a moderately conservative court. You had a lot of moderates like Potter Stewart who just left, Byron White, Lewis Powell, John Paul Stevens that were moderates. On some issues, they were liberal, and on other issues where they were conservative. O'Connor fit in because she was not as conservative as her former law school colleague, Rehnquist. Let's face it.
N. Rodgers: But Reagan at this point would not be considered now. Then he was considered an arch-conservative.
J. Aughenbaugh: Conservative.
N. Rodgers: Now it would be like, is he really a conservative? He's a medium conservative. Some people in the party would call him a RINO.
J. Aughenbaugh: Republican In Name Only. Yes.
N. Rodgers: Is that true of her now? On the court now would she be considered a conservative?
J. Aughenbaugh: A conservative, no. On the current court, she would be to the right of Kagan. But she would be to the left by a good distance of Chief Justice John Roberts. Mind you, Roberts is viewed with a fair amount of skepticism by many conservatives in the United States today.
N. Rodgers: So she wouldn't be.
J. Aughenbaugh: When she retired from the court, she was the median vote on a closely divided 5-4 Supreme Court. She was the median vote. There were four liberals to her left and four conservatives to the right. That's why for an extended period of time newspapers, magazines in this country said Sandra Day O'Connor was the most powerful woman in the United States.
N. Rodgers: Because she was the deciding vote in a lot of court cases.
J. Aughenbaugh: A lot of controversial issues that were dividing the nation, Sandra Day O'Connor's vote would decide Supreme Court cases.
N. Rodgers: But you have said something to me off-recording that I would like to mention and that is that Sandra Day O'Connor was an incrementalist to pretty much the nth degree. She wanted to answer the question that was before the court and nothing else.
J. Aughenbaugh: That is correct.
N. Rodgers: I don't want to answer this question for all the ages, I want to answer this question that we have in its limited scope.
J. Aughenbaugh: That's it.
N. Rodgers: That must have driven people like Scalia bananas.
J. Aughenbaugh: It drove Scalia on the right and William Brennan and other hardcore liberals on the left. Just bonkers.
N. Rodgers: But when you think about her history.
J. Aughenbaugh: It makes all kinds of sense.
N. Rodgers: How she comes to the position.
J. Aughenbaugh: Yes.
N. Rodgers: Her saying, I'm not here to decide questions for eternity, I'm here to decide the case that is before me. This one right here in its limited scope.
J. Aughenbaugh: Her conception of the job of Judge, Nia, was a very modest, if you will, conception. Because she thought that the people's elected representatives should be making significant policy decisions for the country.
N. Rodgers: Why did she think that? Because she had been one of the people's elected representatives.
J. Aughenbaugh: That's right.
N. Rodgers: She knew what that job was supposed to be. She'd be driven crazy by the current Congress, don't you think?
J. Aughenbaugh: My goodness. Yes.
N. Rodgers: She'd be going around shaking hands with a lot of people. Nia, give me your hand for a minute.
J. Aughenbaugh: Or many state legislatures. Because a lot of the bad behavior that we see in Congress today has now seeped down to state legislatures, city councils, County Board of Supervisors.
N. Rodgers: She could just put the hand on people and hurt them, make them but rethink.
J. Aughenbaugh: But again her reputation when she was a state legislator in Arizona was, she would frequently have meetings or dinners at her house and try to carve out compromises in consensus. That's what she attempted on the court but that drove her more doctrinaired, if that's a word, but her more, if you will, consistent philosophy colleagues on the left and the right just bonkers. But again, it all arose or flowed from her view that the court should have a modest role in a democracy because it was not elected by the people.
N. Rodgers: I miss Sandra Day O'Connor.
J. Aughenbaugh: She would answer narrow questions even when she was in the majority and did not write the majority opinion she would write concurring opinions that would limit the scope of majority opinions.
N. Rodgers: We arrived at the right point but boy do we not need to be trying to do all this other stuff.
J. Aughenbaugh: Which just drove Scalia in particular nuts.
N. Rodgers: Good for her. She's right, I think. But then see that's how I view the law. I think that if Justices start making law like legislation in the sense of they're making all this wide breadth sort of stuff, they really are getting into the business of the legislature and they can't be held accountable because they're not elected.
J. Aughenbaugh: Elected.
N. Rodgers: I have to admit Sandra Day O'Connor probably formed a lot of my worldview without me even realizing that's what was happening. People should look at their influences. When they get older they should look back and say, I guess I really was influenced.
J. Aughenbaugh: By so and so.
N. Rodgers: Or by their approach to things.
J. Aughenbaugh: The main criticism of her jurisprudence beyond the fact that it drove both liberals and conservatives bonkers on the court.
N. Rodgers: Which I'm not sure is a criticism, but okay.
J. Aughenbaugh: Was that if one of the purposes of the role of law is to set clear behavioral norms you weren't necessarily going to get that from an O'Connor majority opinion.
N. Rodgers: Because it would be this instance. This instance only, with this increment only. No, I see that. That's a fair criticism.
J. Aughenbaugh: That's the downside of her particular approach.
N. Rodgers: Part of me thinks, yeah, she kept them guessing but in some ways, you don't necessarily want to keep people guessing.
J. Aughenbaugh: Want to keep people guessing.
N. Rodgers: It hurts me but I have to admit you're right that is a legitimate criticism.
J. Aughenbaugh: But her approach, Nia, as you pointed out is much like the approach of the subject of my dissertation, Byron White, and also one of the justices who I have said on this podcast, I've said in my classes, who I've long admired Robert Jackson. Because their approach as a justice was of restraint. We have a modest role that's no bigger, certainly not greater than the Congress, the President, or States. They answered narrow questions and then they moved on.
N. Rodgers: But am I right that what that meant was that in various topics you would get one ruling in one way and then another ruling in another way which would make both sides a little bit bonkers?
J. Aughenbaugh: The classic example is affirmative action, Nia. On one hand, Sandra Day O'Connor wrote the majority opinion in the case of Richmond versus Croson from 1989 which held that government affirmative action programs had to satisfy strict scrutiny, which as we discussed in a previous podcast episode is a really difficult standard for the government to satisfy. On the other hand, 14 years later, Sandra Day O'Connor wrote the majority opinion in the Grutter versus Bollinger case that held that the University of Michigan Law School's affirmative action program was constitutional.
N. Rodgers: She did put a time frame on that. Didn't she?
J. Aughenbaugh: Yes, she did put a time frame on it.
N. Rodgers: But she said it was constitutional, so she says it's not constitutional here, but it is constitutional here. You have in your notes another one that I'd like to bring up. I know we don't want to spend a huge amount of time on these mixed subjects, but in LBTQ-plus cases.
J. Aughenbaugh: Yes.
N. Rodgers: On the one hand, she votes in Bowers v. Hardwick, 1986, that sodomy is not protected by the 14th Amendment.
J. Aughenbaugh: That's right.
N. Rodgers: States can say that's illegal.
J. Aughenbaugh: States can say that even consensual sodomy can be criminalized.
N. Rodgers: But then in Lawrence v. Texas in 2003, she votes that you can't treat homosexual sodomy any differently than you treat heterosexual sodomy. She's like, either sodomy is illegal and all sodomy is illegal.
J. Aughenbaugh: All sodomy is illegal.
N. Rodgers: Regardless of the parties involved, or it is not illegal.
J. Aughenbaugh: For all people.
N. Rodgers: Right. Which must have been very confusing for the States. Are you saying it's legal or not legal, and she's like, I'm saying, you can say it's illegal, but it has to be illegal for everybody.
J. Aughenbaugh: Or if you're going to make it legal.
N. Rodgers: It's got to be legal for everybody.
J. Aughenbaugh: She's basically saying to the states you pick, but if you pick.
N. Rodgers: You got to pick for everybody.
J. Aughenbaugh: You've got to follow the equal protection clause.
N. Rodgers: Because states had generally made sodomy illegal between homosexual couples, and not considered it at all between heterosexual couples. People were saying, wait, that doesn't seem fair, and she's like, you're right, that's not fair. It's not fair. It's either everybody or nobody.
J. Aughenbaugh: Yes.
N. Rodgers: I think that that's an interesting, powerful.
J. Aughenbaugh: It's a very powerful statement.
N. Rodgers: It's because she answered the narrow question.
J. Aughenbaugh: Question. Yes. Okay.
N. Rodgers: But I'm sure that advocates on all sides were like, she's making me crazy.
J. Aughenbaugh: But for conservatives, her most disappointing area of jurisprudence was abortion, because she never gave the Burger or Rehnquist courts, the fifth vote to say that abortion is not protected by the US. Constitution. She always voted to uphold a woman's right to choose. In Planned Parenthood versus Casey, she was part of the three-justice plurality along with Justices Souter and Kennedy. They came up with the standard that controlled the Supreme Court's abortion case law for 30 years. The undue burden standard, a state law or regulation, that placed an undue burden on a woman's right to choose, violates the US Constitution.
N. Rodgers: That's what has been recently overturned in Dobbs.
J. Aughenbaugh: Dobbs.
N. Rodgers: But that stood for a long time.
J. Aughenbaugh: It stood for a long time. But a lot of her clerks in the last few days have begun to write op-eds about their former boss, and almost all of them lament that her legacy on the court has been seriously undercut or eroded. Because so many of her well-known opinions and votes are being changed by a more conservative court. You just mentioned abortion. The Dobbs decision overturned Planned Parenthood versus Casey.
N. Rodgers: Right.
J. Aughenbaugh: In the affirmative action ruling.
N. Rodgers: Of the recent cases to fair admissions cases.
J. Aughenbaugh: The Harvard and UNC cases from the most recent Supreme Court term. Religion, she had a very balanced or nuanced view. She neither subscribed to the view that there should be a complete wall between church and state, but she was skeptical about the government becoming too involved with religion. Well, the Supreme Court, since she's retired, has definitely moved to the latter position.
N. Rodgers: She was part of the case about the Ten Commandments. Wasn't she the one where they wanted to post the Ten Commandments in the local courthouse?
J. Aughenbaugh: Yes. In Kentucky.
N. Rodgers: The ACLU sued and said you can't do that.
J. Aughenbaugh: Yes.
N. Rodgers: And she agreed.
J. Aughenbaugh: She agreed.
N. Rodgers: You can't do that. That's got to be a separate, and so that's been eroded. Not really. But one of her votes that hasn't been eroded.
J. Aughenbaugh: Has not been eroded [inaudible] and liberals still do not forgive her because she was part of the majority that said that the Florida Supreme Court violated the 14th Amendment's Equal Protection clause, would allowed for the recounting of votes in the 2000 presidential election without a meaningful standard. They still don't forgive her. She was part of the majority.
N. Rodgers: Can I just say, Al Gore has forgiven that, and I'm not sure that anybody else has a bigger dog in that fight. Bigger dog in that [inaudible].
J. Aughenbaugh: I always thought that Al Gore's reaction.
N. Rodgers: Was graceful beyond.
J. Aughenbaugh: Was the epitome of being a professional politician.
N. Rodgers: And a statesman.
J. Aughenbaugh: Yeah.
N. Rodgers: That was a statesman moment when he said, we need to unite the country.
J. Aughenbaugh: We need to move on, and we need to support the next president.
N. Rodgers: This needs to stop being a divisive issue. Good for him that he had the grace to do that, But that's one that will never be overturned. That one stood and it changed the course of history.
J. Aughenbaugh: The other area of law that liberals are not very generous. Well, in fact, they hate them. O'Connor was consistently a member of the Rehnquist court's revival of federalism as a check on the federal government's power.
J. Aughenbaugh: To me what's fascinating is you now have states that are controlled by the Democratic Party that rely upon those rulings of the Rehnquist Court.
N. Rodgers: Exactly. They said, we have right to do this because we're the states.
J. Aughenbaugh: But nevertheless, they were like, we really can't trust her completely because she believes in federalism. But there are some other observations before we conclude this episode. She was probably closest to Justice Lewis Powell, who was appointed to the court by Nixon. But Lewis Powell was a moderate or swing voter on the court, but she was close to him because he was so welcoming and assisted her so much when she first got on the court.
N. Rodgers: She was close to Rehnquist as well. But didn't they have dinner together?
J. Aughenbaugh: Yes, they had dinner together.
N. Rodgers: Regularly, the four: Rehnquist and his wife and Sandra Day O'Connor and John O'Connor.
J. Aughenbaugh: She was also very close to Thurgood Marshall. She said she always appreciated how Thurgood Marshall attempted to remind the court about how race discrimination was embedded into the structures of the US government at all levels.
N. Rodgers: Talking about systemic racism before anybody else was talking about systemic racism.
J. Aughenbaugh: You want to talk about lived experience. She appreciated how his lived experience was different than hers. She spoke glowingly about how much she appreciated when Ruth Bader Ginsburg became the second female justice in the history of the Supreme Court. Because basically for roughly the first dozen years she was on the court, she was the only woman, and she loved having Ruth Bader Ginsburg on the court.
N. Rodgers: Even though they had to be complete opposites in terms of how they approached jurisprudence.
J. Aughenbaugh: They voted differently about three-quarters of the time.
N. Rodgers: There's a book, if anybody wants to read it, about this called, Sisters in Law.
J. Aughenbaugh: Yes.
N. Rodgers: That is about the two of them, and their careers and the parallels and the divergences. They had a lot of similar experiences when they were young, being overlooked. Now, you think about two brilliant women, I just find that brilliant.
J. Aughenbaugh: Their jurisprudence is different. There is a Chapter 2 in that book, they talk about how they subscribe to different conceptions or versions of feminism. It's fascinating.
N. Rodgers: We're not saying you go out and buy it, borrow it from a library. We're not suggesting that you spend money, but we are suggesting that it's an interesting read. We've already talked about how crabby she and Scalia were with each other, and the differences about incrementalism. Scalia wanted bigger approaches. They wanted big questions. Well, because Scalia believed he was right about everything and he wanted to fix it all. Sandra Day O'Connor was more like, we might be right about this thing, we might not be able to be right about all the things.
J. Aughenbaugh: Again, that flows from the fact that Scalia's originalist had a particular version of interpretation that he subscribed to. O'Connor was not doctrinaire. She was not a strict constructionist, she wasn't a loose constructionist. Her view was, we've been presented a particular question and our job is to address that particular question. We'll leave it to other folks to go ahead and figure out what are the implications of this.
N. Rodgers: Well, and the litigants in this case don't care about the larger question, they want to answer for themselves.
J. Aughenbaugh: That's right.
N. Rodgers: It's not up to us to use them as leverage to answer larger questions or take on larger philosophical complications.
J. Aughenbaugh: There are three last things I wanted to mention, and I think I'm going to capture one of them. One, she was typically the first questioner among the justices during oral arguments. Attorney said they feared her because they knew that the first question was going to come from her.
N. Rodgers: By-the-by, when you stand up before the Supreme Court, you stand up and there's a formal way that you start. You start by acknowledging the Justices.
J. Aughenbaugh: May it please the Court.
N. Rodgers: May it please the Court. Good afternoon, Supreme Court, Chief Justice Roberts. Then you start naming them and you take a breath and anybody can interrupt you at that point.
J. Aughenbaugh: She would.
N. Rodgers: They don't even get all the words out before whoever it is starts asking questions.
J. Aughenbaugh: They have a recent change from a couple of years ago, Nia, where the Justices have agreed to a 30-second or 45-second pause.
N. Rodgers: To let that person finish, because I'm sure that it's very unnerving, you're in the middle of doing a thing and somebody says, not to interrupt you, but I'm going to interrupt you. What about this complicated question that I'm about to ask in 16 parts. They don't necessarily give you a chance to answer before the next person is asking their question, which is why you take an assistant to write down all the questions so that you can answer them in the order that they come. I'm sure she terrified people. She would have terrified me. If I was in a class and she called on me, I would have just fainted on the spot. I would have pretended to be one of those goats that just faints and I would have just fallen down on the floor and waited for her to call on somebody else.
J. Aughenbaugh: Listeners neither Nia nor I are shrinking violets when it comes to small group interactions.
N. Rodgers: But man I wound love water.
J. Aughenbaugh: But there is something that you and I both think is very noteworthy about Sandra Day O'Connor. I entitled my research notes for this episode as the first and possibly the last. I think both Nia and I think that this is a very salient point about Sandra Day O'Connor.
J. Aughenbaugh: I both believe this, unfortunately Sandra Day O'Connor, at least in our lifetime, will be the last elected official nominated and confirmed to serve on the Supreme Court. That's a huge loss for the court as an institution.
N. Rodgers: Experience that she brought from that and the understanding that she brought from the other branches. Because she had worked in both other branches and bringing that experience to the court tempered her willingness for how far the court should go. What is the court's purview versus what's the legislative purview.
J. Aughenbaugh: Or the executive branch. She was more willing to achieve consensus.
N. Rodgers: Because she had been forced to.
J. Aughenbaugh: Yeah, you're not going to get anything done in a state legislature by saying, okay, this is what I believe and I'm not going to deviate. That's not how legislation gets passed. I think that's a huge loss for the institution and the reason why we don't think, at least in our lifetime you're going to see another elected official, is that neither political party would consider somebody like Sandra Day O'Connor with their background. Again, with her particular background.
N. Rodgers: But she never served in one of the big courts in DC. She wasn't Attorney General of the United States.
J. Aughenbaugh: She wasn't a clerk to a Supreme Court Justice. She does not follow the currently subscribed elite model and because she's a politician or was a politician that would actually be viewed as a negative.
N. Rodgers: When I'm President you and I'll fix that. Our Supreme Court nominee will be somebody who we think brings some of this background and this breadth of understanding of government little g.
J. Aughenbaugh: I want diversity of experience. We have a Dean from Harvard Law School like Kagan. Okay, great. We have somebody who previously served on the sentencing commission, that's Justice Brown Jackson. I got somebody who's done this, but I also have somebody has got a law degree who worked in the Congress or the Senate or was the Chair of the Treasury Department. Great. Why? Because I want somebody to be able to say in a conference when they're about ready to take a vote, hey, do we understand that if we vote this way, it will have this impact on the executive branch being able to do this or the message it sends to state legislatures if we do this. I want somebody with that diversity of experience. Now, the last thing I'm going to mention and this is near and dear I think to both of our hearts, but to me in particular.
N. Rodgers: Then I have something I'm going to mention after you do yours.
J. Aughenbaugh: After she retired, Sandra Day O'Connor spent a lot of time running around the country, giving speeches, doing fund raising for two causes that really matter to her, civics education, and judicial independence. As somebody who's basically made a career out of giving sermons about the value of civics. Let me face it. That's the way I can-
N. Rodgers: Of being a civics fan boy.
J. Aughenbaugh: I loved it. She wanted civics taught to kids when they were in first and second grade. She thought that states that were reducing the amount of civics being taught in high school was harming the country, etc.
N. Rodgers: She was right.
J. Aughenbaugh: But I also loved the fact that she thought one of the most important contributions the United States had made to the law around the world, one of its most significant exports was the idea of judicial independence. What marked a healthy democracy was the judiciary being independent from the political branches. But anyways.
N. Rodgers: Which is a fantastic example to set around the world because that's not the case in many countries in the world. My last thing that I want to mention about Sandra Day O'Connor is about the relationship between her and John O'Connor. John O'Connor had Alzheimer's. He eventually had to go to an assisted living institution. Where he met someone else. He lost his memory of his relationship with Sandra Day O'Connor, and he met someone else. She had the grace to let him divorce her or to divorce him so that he could be with this other woman. Because he didn't remember her. He didn't remember the life that they had lived together. The internal power that you have to have to do that is amazing. It's amazing to me that she could love him enough to let him go, and let him be happy in whatever happiness he could find in this state of Alzheimer's and then he eventually passed. Her kids talk about what a beautiful thing because she still loved him. She remembered him. She had not forgotten all of that. But he had and she had to let him have whatever happiness in life he could have.
J. Aughenbaugh: To love somebody so much to go ahead and say, no matter how much this hurts me, my life partner now no longer remembers me in the life that we built together, but this other person makes him happy and is going to go ahead and give him some joy as he shrinks further into that fog and haze that becomes Alzheimer's. That's just truly remarkable. That's the sign of a remarkable person who can go ahead and say, I love somebody this much that I'm willing to go ahead and let them go in effect no matter how much it hurts me. That is the kind of grace and self sacrifice that I don't think I will ever be able to achieve, but I aspire to.
N. Rodgers: That's exactly how I feel. What a wonderful way to say that is something to aspire to. I know, that I'm probably never going to be the graceful. But I can hold that as an example of that is truly love and it's also a deep sense of fairness. What's fair in the world for him as well as what's fair for her and good for her that she was able to do that gracefully and kindly and didn't make a big thing of it. People didn't know until well after that that's what had happened.
J. Aughenbaugh: Happened yeah.
N. Rodgers: We just couldn't love Sandra Day O'Connor more. I'm sorry that she's gone, but I think she changed a lot of generations of people and how they view the court. I'm not sure that the justice can hope for more than that.
J. Aughenbaugh: If after I die, people say, a quarter or 10% of the positive impact that Sandra Day O'Connor had.
N. Rodgers: That will have been a life well lived.
J. Aughenbaugh: Not bad for a kid who grew up on a farm in- .
N. Rodgers: In Texas. With a handshake that can murder PhD students. Thank you Sandra Day O'Connor for your years of service and your life after that.
J. Aughenbaugh: Thanks Nia.
N. Rodgers: Thank you.
J. Aughenbaugh: Thanks for working with me on this because of all the episodes we do.
N. Rodgers: When we lose the justice it's hard.
J. Aughenbaugh: Listeners, Nia knows how much.
N. Rodgers: Aughie comes to think of these people as family. In a lot of ways he comes to think of these people as he knows a lot about them. Thank you for sharing what you knew about her and thank you for commemorating her.
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