Sandra Day O'Connor's Retirement: A Strong Statement That It's Acceptable to Leave An Important Job to Care for a Spouse Who Is Very Ill

By EDWARD LAZARUS

Thursday, Jul. 07, 2005

Justice Sandra Day O'Connor's surprise retirement has offered much grist for punditry's mill. Commentary has focused, thus far, on three major questions: Will President Bush, as is expected, nominate a hard-line conservative to fill O'Connor's seat, or will he opt for a more moderate choice? If does opt for a hard-liner, and a titanic confirmation battle follows, what will the outcome be? And when a new Justice succeeds O'Connor - who was the swing vote on so many hot-button legal issues - how will the Court's jurisprudence change as a result?

One very significant aspect of Justice O'Connor's decision, however, has largely been lost amid all the hubbub: She is, so far as I can recall, the first justice ever to retire in order to take care of a sick spouse.

In recent times, justices - all men -- have retired or resigned because of their own illnesses, because they have taken other posts, or even because of scandal. But they have never, to my knowledge, left to tend the home fires; their reasons are pretty much anything but that.

How fitting it is, then, for the first female justice to bring her tenure on the high court to a close by making a strong post-feminist statement that, in a family crisis, it can be the right choice to put aside one's career.

Previously, Retiring from the Court to Care for a Spouse Was Not Seen as an Option

Over the years, more than a few justices have had to deal with a seriously ill or dying spouse. Indeed, Chief Justice William Rehnquist's wife died not so long ago after a difficult struggle with cancer. There is great sympathy in and around the Court for justices coping with such domestic tragedy. But I cannot remember hearing or reading a single suggestion -- or even a fleeting thought -- that one of the justices might consider stepping down to spend a last few good years caring for a lifetime's companion.

On this score, a lot of us owe Justice O'Connor an apology. For some months now, word had been leaking out that her husband was in the early stages of Alzheimer's Disease. But that revelation only tended to reinforce the widely-held belief that O'Connor -- arguably the most powerful judicial officer in the world -- would stay on the Court.

Observers - mostly male - expected her to want to stay on the Court to preserve the core of her own day-to-day life as she coped with the difficulties of her husband's illness. We expected she would look to work as, perhaps, a needed respite from family responsibilities. We thought that if caretaking need to be done, she would leave it to others.

In short, we expected O'Connor to behave just as the male justices traditionally have. And that was a big mistake. She has made a very different choice - a choice that paves the way for other Justices, including men, to do the same if they so choose.

Justice O'Connor's Admirable Insistence on Living Her Life, Her Way

Among O'Connor's most admirable traits has always been her determination, successfully realized, to live life on her own terms.

It isn't just that she managed to overcome blatant gender discrimination to achieve unsurpassed success in law -- after a darn successful run in politics to boot. It's that she also managed all this while raising three sons, and carrying on a successful marriage.

Despite a seven-year hiatus from law practice for child-rearing, Justice O'Connor came back to once again excel in her profession. And as a Justice, she fought breast cancer while still on the bench.

O'Connor's decision to retire to take care of her husband, then, is of a piece with the rest of her life. In a time when her family needs her intensely, she is, once again, there for them. She has placed love and family above career and power in a time of crisis. Doubtless, in the past, she has worked long hours when the Court needed her, as well.

O'Connor's choice makes her a fitting role model for those women - and men - who choose to leave professional life for the career of parenthood, or to become a caretaker for a family member, without pause or apology.

In another day, such choices - when made by women - were frowned on in some quarters as betrayals of feminism, and the strides women had made in professional life. But today it is widely understood that these choices require their own brand of courage and integrity - whether they are made by women, or by men.

Exemplifying just these virtues, O'Connor has blazed yet another trail in walking away from the Court, as no other justice has.

The Importance of Justices' Personalities, As Shown through Character Tests, Not Trivia

The deeply personal cause of O'Connor's decision underscores another important shortcoming in the way we often view the justices: Most of the time, we forget they are ordinary human beings with relatively normal personalities, concerns, and character traits. Instead of treating them this way, we insist on a kind of phony hagiography which transforms unexceptional conduct into godlike beneficence.

Right now, for example, commentators are vying to outdo each other in praise of O'Connor's congeniality, warmth, and deep regard for her former clerks and others around her. This is more than a bit much. It is no insult to O'Connor to say that we really shouldn't be heaping praise on someone because she is basically decent in her everyday social interactions. Supreme Court justice or not, no one merits sainthood for asking after the families of former employees, or contributing to a pot luck office lunch, or even cracking a joke or two.

The problem here is not the focus on personality, but the focus on superficial and meaningless personality traits, instead of on the deeper background and character of the justices. These are worth studying far more than we do.

When a candidate runs for president, we are treated to endless stories about the formative experiences of his lie. Some of this information comes to us through more or less responsible investigative reporting. Some of this comes through the mythmaking apparatus of the campaign, as it sells a candidate on the basis of his or her values and character. And some of this comes through negative stories planted by the opposition. But whatever the means or the medium, we pay attention to the information we learn (if it is trustworthy) because we believe that personal history and formative experiences matter. They invariably shape (and can be a predictor for) the choices public officials make once in office.

This is no less true for Supreme Court justices. Perhaps there are some justices whose jurisprudences did not powerfully reflect their own life experiences and the moral judgment these experiences informed. But surely, much more often, the opposite is true.

O'Connor is the perfect example. As her autobiography makes clear, she is a daughter of the frontier, who holds the frontier values of individualism, a certain kind of toughness, and a distrust for centralized authority. And she's a daughter of the frontier whose political values were shaped under Barry Goldwater in Arizona state politics, and as a woman making her way in a man's world.

O'Connor's jurisprudence fits this background and experience to a tee. She was tough on crime in just the way a frontier judge (as she had been) would likely be. She was an advocate of states' rights -- not for the old-fashioned, invidious reason of protecting Jim Crow against federal dismantling, but for the pragmatic Western reason of really believing that most problems are better solved locally than nationally.

She was a skeptic as to affirmative action -- a kind of "group think" to which she was allergic, preferring that candidates be judged on their individual performance. Yet, interestingly, she was less skeptical of such programs when the beneficiaries were women - perhaps because she knew the sting of gender discrimination first-hand. Famously, her top grades at Stanford Law did not matter in the job market - in which she was offered positions not as an attorney, but as an attorney's secretary.

When Assessing Nominees, We Should Look to Character, Not Just Views on the Law

As the nation girds for a political war over O'Connor's replacement, there is a lesson in our experience with O'Connor herself: Characters bears itself out in action.

So if we want to know what kind of Supreme Court justice a nominee will turn out to be, we should hope that the members of the Senate Judiciary Committee ask at least as many questions that probe the background and character of the nominee, as those directed at the nominee's views on specific legal issues.

If history is any guide, it is all too easy to give vague and slippery answers to jurisprudential questions. No nominee will admit to having prejudged any of the important legal issues that might come before the Court, whether the issue is gay marriage or flag burning or whatever else. Instead, the nominee - whoever he or she may be - will doubtless hide behind legal abstractions and general statements of principle.

But personal history - family, upbringing, friends, career experiences, intellectual interests and icons: these are what they are. A candidate may easily obscure his or her true views, but cannot easily obscure the choices he or she has made in life, or their significance.

And these choices are as significant as they are plain: They are likely to tell us more about what kind of justice a nominee will prove to be than some carefully rehearsed mumbo jumbo about the nominee's views on due process or equal protection.

With O'Connor, the nation got exactly what another Westerner, Ronald Reagan, undoubtedly expected. And I'll bet Reagan's expectations weren't based so much on the decisions O'Connor wrote, as on the person he discerned that she was - a person with whom he felt he could make common cause.

If the Senate does its job, we won't be surprised this time around either.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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